Tim Greene

Tim is a Fellow at the Center for Internet & Society. He splits his time between representing authors, filmmakers, musicians, and others who rely on copyright fair use in creating their works, and pursuing a scholarly research agenda. Tim’s research interests include trademark theory, copyright and trademark fair use, and various doctrinal areas governed by the First Amendment, including commercial speech and campaign finance regulation.

On Tuesday, the Fair Use Project, along with the good folks at Bingham McCutchen LLP and Virginia Rutledge, filed a brief amici curiae on behalf of the Andy Warhol Foundation for the Visual Arts, Inc., and the Robert Rauschenberg Foundation in the Cariou v. Prince remand.

Should individuals hold veto power over depictions of reality? That's the question at the heart of Hart v. Electronic Arts, Inc., and we here at the Fair Use Project think the answer is a resounding "no."

Sarah Morris is a well-known multimedia artist and filmmaker. In 2007, she debuted her "Origami" series, 24 paintings in which she reworked, redesigned, and reshaped origami crease patterns on canvas. Several origami artists sued Morris for copyright infringement, arguing Morris had unduly appropriated their allegedly copyrightable origami crease patterns in developing the "Origami" series. The Fair Use Project teamed up with attorneys Bob Clarida and Donn Zaretsky to defend Morris. We briefed the fair use issues on summary judgment.

In two recent decisions concerning copyright’s fair use doctrine, the Second Circuit addressed the lawfulness of incorporating one creative work into a new one. In both Cariou v Prince and Salinger v Colting, US District Judge Deborah Batts enjoined similar activity using nearly identical reasoning. But on appeal, the Second Circuit found fair use in the former and likely infringement in the latter.

Trademark strength, properly understood, refers to the scope of protection afforded a trademark by courts based on that mark’s inherent and acquired: (1) tendency to signify to consumers a consistent source of the products to which the mark is affixed; and (2) ability to influence a consumer’s purchasing decisions. The stronger the mark, the more uses the mark’s owner may exclude from the marketplace through a trademark infringement or dilution action.

"As Stacey Dogan noted in her recent review of Bob Bone’s Taking the Confusion Out of “Likelihood of Confusion”: Toward a More Sensible Approach to Trademark Infringement, trademark law is at a bit of a crossroads. Scholars increasingly question basic tenets of trademark law and seek explanations for our blinkered theories of trademarks. Among recent attempts at comprehensive trademark law frameworks, some are good, some great, some … not."

Julie Ahrens, an attorney for the amici, noted Tuesday that the MPAA, the International Documentary Association and Film Independent aren't always necessarily on the same side of the fair use issue. The fact that they all teamed up in this case testifies to the importance of the kind of uses that could be affected by the appeals court's ruling, as well as the well-settled state of the legal precedent in this area, she said.